Ted Cruz, who in 1996 clerked for then-chief justice William Rehnquist and is now a first-term senator and GOP presidential candidate, has assumed the leadership of conservatives aiming to rein in a Supreme Court they fault for imposing on the country rights not found in the Constitution. This is hardly a new issue for conservatives; in a past now faraway, it was also an issue for some liberals.
What accounts for the fresh concern about judicial activism is a sense among conservatives that during its past term the Court “crossed a line,” as Cruz put it during a recent hearing on the topic held by the Judiciary Committee subcommittee he chairs, on federal rights and federal courts. The line-crossing case Cruz had mainly in mind was Obergefell v. Hodges, in which a five-justice majority read into the Constitution a right to same-sex marriage, usurping the constitutional right of the people to decide the marriage question. “People can disagree over this issue,” said the Texas senator, “but it has always been left to the people to decide.”
Cruz and his colleagues heard testimony that more decisions like Obergefell could be in the offing. The legal writer Ed Whelan told the subcommittee there is now “no rewriting of the Constitution that is beyond the bounds of the possible if something matters to the left and there are five or more living-constitutionalist justices on the Court.” The living-constitutionalist approach to interpreting the Constitution is actually not to interpret it—at least not according to text and history and structure—but to read into it understandings that are in none of those traditional sources and which today are invariably “progressive.”
Whelan said, “The list of possible living-constitutionalist innovations is endless,” and offered several: “Voting rights for illegal aliens; taxpayer funding of abortion and of sex-change operations; mandatory equalized spending for public-school districts; a right to welfare payments above the poverty line; and a right to have multiple spouses.”
In the hearing, titled “With Prejudice: Supreme Court Activism and Possible Solutions,” the subcommittee focused on structural matters. It heard testimony as to how the judiciary, famously anticipated by Alexander Hamilton as “the weakest of the three departments of government,” has over the years become much more powerful, such that it could render a decision like Obergefell (and before it Roe v. Wade, the 1973 case that read into the Constitution a right to abortion, taking that issue from the citizens of the states).
As explained at the hearing by Chapman University law professor John Eastman, the original constitutional provisions meant to check and balance the Supreme Court, including the power to impeach justices, have failed to do so. Not incidentally, in his dissent in Obergefell, Justice Samuel Alito read the Court’s history in a similar fashion: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
Might some new attempt to restrain the Court work? Most of the ideas identified at the hearing would necessitate amending the Constitution as provided for in Article V, a two-step process requiring the proposal of an amendment (by a two-thirds vote of both houses or a convention called by Congress upon request of the legislatures of two-thirds of the states) and then its ratification (by legislatures of, or conventions in, three-quarters of the states).
In his testimony, Whelan summarized the “types” of structural amendments that deserve attention. First, Article V could be amended to make it easier to change the Constitution—and thus to reject lawless Supreme Court decisions. A second type of amendment would enable Congress or the aggregate of state legislatures to directly invalidate a particular Supreme Court decision—with the deed done by a supermajority in each house of Congress or a supermajority of the state legislatures.
A third type of amendment would provide a means for removing lawless justices. Cruz himself has already proposed an amendment of this type, one that would subject the justices to periodic judicial-retention elections. A fourth type of amendment would impose term limits on the justices. That idea has been batted around for decades, with an 18-year term the one most commonly recommended. Under such an amendment, one justice would step down from the Court every two years.
While Cruz’s interest in structural reform is evident, he has taken on a hard task. Some of the proposals discussed in the subcommittee need work, including Cruz’s own, which does not say whether current justices would be “grandfathered in” and thus made exempt from the retention elections. And the amendment process itself, with its supermajority requirements, is a place where proposals seem to go to die: Since 1789, according to The Heritage Guide to the Constitution, more than 5,000 bills proposing amendments have been introduced in Congress, with 33 sent to the states for ratification. And no attempt by the states to call a convention has ever succeeded, though some have come within one or two states of the two-thirds requirement.
One topic the subcommittee didn’t discuss was the appointment of new justices, the means for which, of course, are already spelled out in the Constitution. Yet in filling a vacancy, a president can respond to a Court whose approach to judging he disagrees with.
Currently the Court is more sharply divided in terms of judicial philosophy than it ever has been. There are four judicial liberals (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and four judicial conservatives (Justices Antonin Scalia, Clarence Thomas, John Roberts, and Alito), the ninth justice being Anthony Kennedy, a man of variable legal views who wrote for the Obergefell majority (which included
the four liberals).
The next president may well have the opportunity to nominate and appoint one or more justices in a first term and thereby shift (to the right or left, depending on who leaves and who arrives) the philosophical direction of the Court. Cruz would like to be that president, but so would a truckload of others in his party. The Court promises to become more of an issue in the presidential race than it often is, with the question for the country whether the living constitutionalism of Obergefell is to be perpetuated by new justices or finally brought to a halt by a Court with new appointees who have the courage to stand their ground.
Terry Eastland is an executive editor at The Weekly Standard.
